Australia and New Zealand in the Asia Pacific.

Maritime Security

Maritime security is of vital importance to Australia and New Zealand, as both countries depend on maritime transport for their economic survival. Since the events of 11 September 2001 serious questions have been raised as to whether Australia and New Zealand are adequately prepared for the consequences of a major disruption of global shipping following a terrorist attack on a leading regional port such as Hong Kong or Singapore. Considerable efforts have been undertaken to improve responses to an array of maritime security threats, such as transnational crime, environmental pollution and piracy and armed robbery.

This volume identifies the issues that particularly affect Australia and New Zealand’s maritime security, evaluating the issues from legal and political perspectives, and proposes methods for improving the maritime security of the two countries. While the focus is primarily on Australia and New Zealand, the scope extends to regional considerations, addressing matters related to Pacific island states, South East Asia and the Antarctic and sub-Antarctic regions. The book also addresses strategic partnerships, examining the influence of the United States, and analyses issues within the broad framework of international law and politics.

Maritime Security: International Law and Policy Perspectives from Australia and New Zealand will be of great interest to scholars of international law, international relations and maritime affairs, maritime industry professionals, private and government lawyers, as well as diplomats, consuls and government officials.

Natalie Klein is an Associate Professor at Macquarie Law School, Macquarie University, Sydney, Australia.

Joanna Mossop is a Senior Lecturer in the Faculty of Law at Victoria University of Wellington, Wellington, New Zealand.

Donald R. Rothwell is Professor of International Law at the ANU College of Law, Australian National University, Canberra, Australia.

Maritime Security

International Law and Policy Perspectives from Australia and New Zealand

Edited by Natalie Klein,

Joanna Mossop and

Donald R. Rothwell

First published 2010 by Routledge

2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN

Simultaneously published in the USA and Canada by Routledge

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This edition published in the Taylor & Francis e-Library, 2009.

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© 2010 Natalie Klein, Joanna Mossop and Donald R. Rothwell; the contributors, their chapters

All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.

British Library Cataloguing in Publication Data

A catalogue record for this book is available from the British Library

Library of Congress Cataloging-in-Publication Data

Maritime security : international law and policy perspectives from Australia and New Zealand / Edited by Natalie Klein, Joanna Mossop and Donald R. Rothwell.

p. cm.

Includes bibliographical references.

1. Maritime terrorism—Pacific Area. 2. Law of the Sea—Australia. 3. Shipping—Safety regulations—Australia. 4. Maritime terrorism— Australia—Prevention. 5. Law of the sea—New Zealand.

6. Shipping—Safety regulations—New Zealand. 7. Maritime terrorism—New Zealand—Prevention. 8. Security, International. I. Klein, Natalie (Natalie S.) II. Mossop, Joanna. III. Rothwell, Donald, 1959–

KVC982.T47M37 2009 359′.030993—dc22

2009016447

ISBN 0-203-86747-5 Master e-book ISBN

ISBN10: 0–415–48426–X (hbk)

ISBN13: 978–0–415–48426–8 (hbk)

ISBN10: 0–203–86747–5 (ebk)

ISBN13: 978–0–203–86747–1 (ebk)

10Act of State Doctrine in the Antipodes: The Intersection of National and International Law in

CAMERON MOORE

11The Protection of Platforms, Pipelines and Submarine Cables under Australian and

CHRIS RAHMAN

13Intelligence Gathering and Information Sharing for Maritime Security Purposes under

NATALIE KLEIN

14Maritime Security in the Twenty-First Century: Contemporary and Anticipated Challenges for

List of Illustrations

11.1Area to be avoided, Schedule 2 of the Offshore Petroleum and

Legislation, Treaties and other International Documents

Legislation

Acts Interpretation Act 1901 (Cth). Armed Forces Discipline Act 1971 (NZ).

Australian Maritime Safety Authority Act 1990 (Cth). Charter of the United Nations Act 1945 (Cth). Coastal Waters (State Powers) Act 1980 (Cth). Coastal Waters (State Title) Act 1980 (Cth).

Commonwealth of Australia Constitution Act 1900 (Cth). Constitution Act 1986 (NZ).

Continental Shelf (Kupe Wellhead Platform Safety Zone) Regulations 2006 (NZ). Continental Shelf (Maui A Safety Zone) Regulations 1975 (NZ).

Continental Shelf (Maui B Safety Zone) Regulations 1991 (NZ).

Continental Shelf (Pohokura Platform B Safety Zone) Regulations 2006 (NZ). Continental Shelf (Umuroa Installation Safety Zone) Regulations 2008 (NZ). Continental Shelf Act 1964 (NZ).

Continental Shelf Floating Production, Storage and Off-loading Installation Safety Zone Regulations 1996 (NZ).

Crimes (Child Sex Tourism) Amendment Act 1994 (Cth). Crimes (Ships and Fixed Platforms) Act 1992 (Cth).

Crimes Act 1914 (Cth).

Crimes Act 1961 (NZ). Crimes at Sea Act 2000 (Cth). Criminal Code Act 1995 (Cth). Customs Act 1901 (Cth).

Customs and Excise Act 1996 (NZ). Customs Regulations 1926 (Cth). Defence Act 1903 (Cth).

Defence Act 1990 (NZ).

Defence Force Discipline Act 1982 (Cth).

Defence Legislation Amendment (Aid to Civil Authorities) Act 2006 (Cth). Dog Control Act 1996 (NZ).

Environmental Protection and Biodiversity Conservation Act 1999 (Cth). Fisheries Act 1996 (NZ).

Legislation, Treaties and other Documents ix

Fisheries Management Act 1991 (Cth).

Foreshore and Seabed Act 2004 (NZ).

Geneva Conventions Act 1957 (Cth).

Geneva Conventions Act 1958 (NZ).

International Crimes and International Criminal Court Act 2000 (NZ). Land Transport Act 1998 (NZ).

Maritime Crimes Act 1999 (NZ).

Maritime Legislation Amendment Act 2007 (Cth). Maritime Security Act 2004 (NZ).

Maritime Transport and Offshore Facilities Security Act 2003 (Cth). Maritime Transportation Security Act of 2002, Public Law 107–295,

25 November 2002.

Migration Act 1958 (Cth).

Navigation Act 1912 (Cth).

New Zealand Nuclear Free Zone, Disarmament and Arms Control Act 1987 (NZ).

Oceans Act SC 1996 c. 3.1 (Canada).

Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth). Petroleum (Submerged Lands) Act 1967 (Cth).

Resource Management (Foreshore and Seabed) Amendment Act 2004 (NZ). Sea Installations Act 1987 (Cth).

Statute of Westminster Adoption Act 1947 (NZ).

Submarine Cable (Northern Sydney Protection Zone) Declaration 2007 (Cth). Submarine Cable (Perth Protection Zone) Declaration 2007 (Cth). Submarine Cable (Southern Sydney Protection Zone) Declaration 2007 (Cth). Submarine Cables and Pipelines Protection Act 1969 (Cth).

Submarine Cables and Pipelines Protection Act 1996 (NZ). Submarine Telegraph Act 1885 (Imp). Telecommunications Act 1997 (Cth).

Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1977 (NZ). Torres Strait Fisheries Act 1984 (Cth).

Treaties

Agreement among Pacific Island States concerning the Implementation and Administration of the Treaty on Fisheries between the Governments of certain Pacific Island States and the Government of the United States of America of 2 April 1987, 2 April 1987, [1988] ATS 43.

Agreement between Australia and Indonesia on Security Cooperation, 13 November 2008, [2008] ATS 3.

Agreement between Australia and the Republic of Indonesia on the Framework for Security Cooperation, 13 November 2006, [2008] ATS 3.

Agreement between Solomon Islands, Australia, New Zealand, Fiji, Papua New Guinea, Samoa and Tonga concerning the Operations and Status of the Police and Armed Forces and other Personnel deployed to Solomon Islands to assist in the Restoration of Law and Order and Security, 24 July 2003, [2003] ATS 17.

x Legislation, Treaties and other Documents

Agreement establishing the ASEAN–Australia–New Zealand Free Trade Area, 12 February 2009, available online at www.aseansec.org/22260.pdf.

Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, 28 July 1994, 1836 UNTS 3.

Amendments to the Annex to the International Convention for the Safety of Life at Sea (SOLAS) contained in Resolutions 1, 2, 6 and 7 of the Conference of Contracting Governments and including the International Ship and Port Facility Security (ISPS) Code, 12 December 2002, [2004] ATS 29.

Antarctic Treaty, 1 December 1959, 402 UNTS 71.

Australia–New Zealand Closer Economic Relations Trade Agreement, 28 March 1983, [1983] ATS 2.

Australia–New Zealand Agreement, 21 January 1944, [1944] ATS 2. Bamako Convention on the Ban of the Import into Africa and the Control of

Transboundary Movement and Management of Hazardous Wastes within Africa, 29 January 1991, 30 ILM 773 (1991).

Basel Convention on the Transboundary Movement of Hazardous Wastes and their Disposal, 22 March 1989, 1673 UNTS 126.

Charter of the United Nations, 26 June 1945, 1 UNTS 16. Convention for the Conservation of Antarctic Marine Living Resources, 20

May 1980, 1329 UNTS 48.

Convention for the Conservation of Southern Bluefin Tuna, 10 May 1993, 1819 UNTS 359.

Convention for the Protection of the Natural Resources and Environment of the South Pacific Region, 24 November 1986, 26 ILM 38 (1987).

Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 10 March 1988, 1678 UNTS 221.

Convention on Fishing and Conservation of the Living Resources of the High Seas, 29 April 1958, 559 UNTS 285.

Convention on the Conservation of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, 5 September 2000, [2004] ATS 15.

Convention on the Continental Shelf, 29 April 1958, 499 UNTS 311. Convention on the High Seas, 29 April 1958, 450 UNTS 11.

Convention on the Protection of Submarine Telegraph Cables, 14 March 1884, [1901] ATS 1.

Convention on the Regulation of Antarctic Mineral Resource Activities, 2 June 1988 (not in force).

Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, 516 UNTS 205.

Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region,

16 September 1995, [2001] ATS 17.

Exchange of Notes constituting an Agreement between the Government of Australia and the Government of Malaysia regarding External Defence, 1 December 1971, [1971] ATS 21.

Legislation, Treaties and other Documents xi

ILO Convention No. C185, Convention revising the Seafarers’ Identity Documents Convention 1958, 19 June 2003, available online at www.ilo.org/ilolex/english/convdisp1.htm.

ILO Convention No. MLC, Maritime Labour Convention, 7 February 2006, available online at www.ilo.org/ilolex/english/convdisp1.htm.

International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 13 February 2004, [2005] ATNIF 18.

International Convention for the Prevention of Pollution from Ships, 2 November 1973, 1340 UNTS 184.

International Convention for the Safety of Life at Sea, 1 November 1974, 1184 UNTS 278.

International Convention on Maritime Search and Rescue, 27 April 1979, 1405 UNTS 97.

International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 7 July 1978, 1361 UNTS 190.

International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 29 November 1969, 970 UNTS 211.

Nairobi International Convention on the Removal of Wrecks, 18 May 2007, London: International Maritime Organization, 2008.

Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region, 9 July 1992, 32 ILM 136 (1993).

Optional Protocol of Signature concerning the Compulsory Settlement of Disputes, 29 April 1958, 450 UNTS 169.

Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime,

15 November 2000, 40 ILM 335 (2001).

Protocol for the Suppression of Unlawful Acts against the Safety of fixed Platforms located on the Continental Shelf, 10 March 1988, 1678 UNTS 304.

Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 17 February 1978, 1340 UNTS 61.

Protocol of 1988 relating to the International Convention for the Safety of Life at Sea of 1 November 1974, 11 November 1988, [2000] ATS 3.

Protocol of 2005 to the 1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf, 14 October 2005, [2005] ATNIF 31.

Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 14 October 2005, [2005] ATNIF 30.

Protocol on Environmental Protection to the Antarctic Treaty, 4 October 1991, 30 ILM 1455 (1991).

Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia, 11 November 2004, 44 ILM 829 (2005).

Security Treaty between Australia, New Zealand and the United States, 1 September 1951, [1952] ATS 2.

South Pacific Nuclear Free Zone Treaty, 6 August 1985, 24 ILM 1442 (1985).

xii Legislation, Treaties and other Documents

South East Asia Collective Defense Treaty, 8 September 1954, [1955] ATS 3.

Timor Sea Treaty, 20 May 2002, [2003] ATS 13.

Torremolinos International Convention for the Safety of Fishing Vessels, 2 April 1977 (not in force).

Torremolinos Protocol of 1993 relating to the Torremolinos International Convention for the Safety of Fishing Vessels 1977, 2 April 1993 (not in force).

Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the Area between the two Countries, including the Area known as the Torres Strait, and related Matters, 18 December 1978, [1985] ATS 4.

Treaty between the Government of Australia and the Government of the French Republic on Cooperation in the Maritime Areas adjacent to the French Southern and Antarctic Territories (TAAF), Heard Island and the McDonald Islands, 24 November 2003, [2005] ATS 6.

Treaty between the Government of New Zealand and the Government of Australia establishing certain Exclusive Economic Zone Boundaries and Continental Shelf Boundaries, exchange of notes, 25 July 2004.

Treaty of Amity and Cooperation in South East Asia, 24 February 1976, [2005] ATS 30.

Treaty on the South East Asia Nuclear Weapon Free Zone, 15 December 1995, available online at www.aseansec.org/3636.htm.

United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 August 1995, 2167 UNTS 88.

United Nations Agreement for the Implementation of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling and Highly Migratory Fish Stocks,

4 December 1995, 2167 UNTS 88.

United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 December 1988, 28 ILM 497 (1989).

United Nations Convention on the Law of the Sea, 2 December 1982, 1833 UNTS 3.

Other international instruments

Memoranda and declarations

ASEAN–Australia Joint Declaration for Cooperation to Combat International Terrorism, ASEAN Secretariat, available online at www.aseansec.org/16205.htm.

Australia–India Memorandum of Understanding on Defence Cooperation, March 2006.

Australia–Japan Joint Declaration on Security Cooperation, 13 March 2007.

Legislation, Treaties and other Documents xiii

Ha Noi Declaration, XIV APEC Economic Leaders’ Meeting, Ha Noi, 18–19 November 2006, available online at www.apec.org/apec/ leaders__declarations/2006.html.

India–United States Defense Framework Agreement, Washington, DC, 28 June 2005.

India–United States Framework for Maritime Security Cooperation, New Delhi, 2 March 2006.

Tokyo Declaration on Securing the Oceans, Institute for Ocean Policy, Ship and Ocean Foundation, Tokyo, 3 December 2004.

Resolutions, codes and guidelines

APEC Secretariat, APEC Private Sector Supply Chain Security Guidelines, APEC Counter-terrorism Task Force, September 2003, available at www.apec.org.

CCAMLR Resolution 20/XXII, Ice-strengthening Standards in High-latitude Fisheries, adopted at the CCAMLR XXII, Hobart, 27 October–7 November 2003.

CCAMLR Resolution 23/XXIII, Safety on board vessels fishing in the Convention Area, adopted at the XXIII CCAMLR,

25 October–4 November 2004.

Guidance relating to the Implementation of SOLAS Chapter XI-2 and the ISPS Code, 7 June 2004, IMO Doc. MSC/Circ.1111, Ref.T2-NAVSEC/2.11, Annex 2, Ch. 3.

Guidance to Masters, Companies and Duly Authorized Officers on the Requirements relating to the Submission of Security-related Information prior to the Entry of a Ship into Port, 14 December 2004, IMO Doc. MSC/Circ.1130.

IAATO Bylaws and Guidelines for Tour Operators, undated, available online at www.iaato.org/bylaws.html.

IMO Guidelines for Ships operating in Arctic ice-covered Waters,

23 December 2002, IMO Doc. MSC/Circ.1056/ MEPC/Circ.399. IMO International Safety Management Code, 2002, London: IMO

Publishing Service, available online at www.imo.org/humanelement/ mainframe.asp?topic_id=287.

IMO International Ship and Port Facility Security Code, adopted at the Conference of Contracting Governments to the International Convention for the Safety of Life at Sea, 1974, 12 December 2002, IMO Doc. SOLAS/CONF.5/34, Annex 1, Conference Resolution 2, pp. 2–91.

IMO Resolution A.982(24), Revised Guidelines for the Identification

and Designation of Particularly Sensitive Sea Areas, 1 December 2005, IMO Doc. A 24/Res.982.

IMO Resolution A.999(25), Guidelines on Voyage Planning for Passenger Ships operating in Remote Areas, 29 November 2007, IMO Doc. A 25/Res.999.

xiv Legislation, Treaties and other Documents

IMO Resolution MEPC 121(52), Designation of the Western European Waters as a Particularly Sensitive Sea Area, 15 October 2004, IMO Doc. MEPC 52/24/Add.1, Annex 10.

IMO Resolution MEPC 45(30), Protection of the Great Barrier Reef, 16 November 1990, IMO Doc. MEPC 30/24.

IMO Resolution MEPC.133(53), Designation of the Torres Strait as an Extension of the Great Barrier Reef Particularly Sensitive Area,

22 July 2005, IMO Doc. MSC MEPC 53/24/Add.2.

IMO Resolution MEPC.141(54), Amendments to the Annex of the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973, 24 March 2006, IMO Doc. MEPC 54/21, Annex 2.

IMO Resolution MSC.202(81), Adoption of Amendments to the International Convention for the Safety of Life at Sea, 1974, as Amended, Ch. V, ‘Regulation 19-1, Long-range identification and tracking of ships Resolution’, 19 May 2006, IMO Doc. MSC 81/25/Add.1, Annex 2.

IMO Resolution MSC.243(83), Establishment of International LRIT Data Exchange on an Interim Basis, 12 October 2007, IMO Doc. MSC 83/28/Add.2.

IMO Resolution MSC.47(66), Adoption of Amendments to the SOLAS Convention, Ch. 3 ‘Regulation 21, Survival craft and rescue boats’,

4 June 1996, IMO Doc. MSC 66/24/Add.1, Annex 2. International Association of Classification Societies, Requirements

Concerning Polar Class (2007) available online at www.iacs.org.uk/ document/public/Publications/Unified_requirements/PDF/ UR_I_pdf410.pdf.

IWC Resolution on Safety at Sea and Protection of the Environment 2007–2 (2007), available online at www.iwcoffice.org/meetings/ resolutions/resolution2007.htm titled co-sponsored by Japan and

New Zealand.

New Zealand Government, Maritime New Zealand, Maritime Rules, undated, available online at www.maritimenz.govt.nz/rules/ maritime_rules.asp.

UN Resolution on Iraq–Kuwait, SC Res. 665, UN Doc. S/RES/665 (1990).

UN Resolution on Oceans and the Law of the Sea, GA Res. 60/30, UN Doc. A/60/30 (2005).

UN Resolution on the Non-proliferation of Weapons of Mass Destruction, SC Res. 1540, UN Doc. S/RES/1540 (2004).

UN Resolution on Non-proliferation/Democratic People’s

Republic of Korea, SC Res. 1718, UN Doc. S/RES/1718 (2006). UN Resolution on the Situation between Iraq and Kuwait, SC Res.

1546, UN Doc. S/RES/1546 (2004).

UN Resolution on the Situation concerning Iraq, SC Res. 1790, UN Doc. S/RES/1790 (2007).

Legislation, Treaties and other Documents xv

UN Resolution on the Situation in East Timor, SC Res. 1264, UN Doc. S/RES/1264 (1999).

UN Resolution on the Situation in Somalia, SC Res. 1816, UN Doc. S/RES/1816 (2008).

UN Resolution on Threats to International Peace and Security, SC Res. 1373, UN Doc. S/RES/1373 (2001).